R v C Shedden

The facts 13Some time between 6pm and 8pm on 29 June 2010 Daniel Forbes was walking with his friends, Chris Wilson, Blake Russell, AB and John Pollard on Mount Hall Road at Raymond Terrace when a red Commodore in which the deceased aged 20, his younger brother Thomas aged 19, Dillon Bell aged 19, Daniel Wright aged 19 and Dean Rivers aged 20 were travelling as passengers, stopped and the deceased alighted. The car was being driven by Bell. The red Commodore was owned by the deceased. Bell had been designated by the deceased as the driver and was not drinking. The others in the red Commodore had consumed considerable quantities of alcohol over the course of the day. Forbes and his two friends were aged 18. They had been celebrating Russell's 18th birthday and were also well affected by alcohol. 14The precise circumstances which precipitated the confrontation between these two groups of young men was the subject of some conflict at the trial. The evidence establishes to my satisfaction that Wilson was punched by the deceased in a largely unprovoked attack causing facial injuries from which he bled profusely. Forbes was also assaulted. 15Forbes and his friends ran from the scene the short distance to his home in Clyde Circuit where he telephoned the offender's brother. John Shedden had formed a friendship with Forbes over the time that they had resided as next-door neighbours a year or so earlier. On learning of the assault John Shedden invited Forbes and his friends to come to his home at Links Drive, a neighbouring street. Forbes arrived with Russell, AB and Wilson. Shannon Purkiss, JB and Luke Nable arrived later having been summoned to the house by Forbes. 16The evidence compels a finding that thereafter John Shedden permitted his home to be used as a base from which an armed retaliatory attack could be planned and launched against the deceased and those in his group who might still be in the area (or in the event that they returned to the area), and that he arranged for the offender and White to attend for that purpose. En route to his brother's house the offender armed himself with a loaded shortened shotgun. Thereafter he assumed the lead role in the events of the night. 17Forbes gave evidence that he saw the offender pull a gun from the right sleeve of his jacket soon after he arrived (and that he opened the breach and unloaded and reloaded a cartridge) and that before the group left the house the offender concealed the gun in the sleeve of his jacket. The offender did not put that evidence in contest. He gave evidence that he brought the gun and ammunition with him because his brother told him there were cars circling the block and that he believed his brother when he said the people in the cars would have guns. In the absence of any evidence that cars were "circling the block" at any time that evening, and where the only information available to John Shedden was that the young men and boys had a fist fight, I reject the offender's explanation for arriving at his brother's house armed. I am compelled to the conclusion that the offender collected the gun either intending to use it or being prepared to use it in launching the retaliatory attack. 18Forbes gave evidence that they left John Shedden's house in a group to see if they could find the boys who had assaulted them earlier that night. He claimed there was no conversation in the house as to what would happen if they found them. Some of the other young men and boys associated with the offender's group gave similar evidence. I regard their evidence generally as self-serving and unconvincing. In particular, I am unable to accept AB's evidence that the offender and his brother instructed the boys in his group when they left the house that they should not take any weapons with them, or that only the offender and his brother were armed when they left. 19I also reject the evidence of Forbes and his mother that he left his home in Clyde Circuit and went to John Shedden's house unarmed. I accept AB's evidence that when Forbes left his mother's house he was armed with what he described as "a knife or a sword". I am also satisfied that Nable was armed with a knife when he arrived at John Shedden's house and that he was given the knife by Forbes' mother. 20The offender denied having participated in or leading an attack on the deceased and his friends, whether in retaliation for the assault suffered by Wilson and Forbes or for any other reason. He said the only reason that he left his brother's house with the younger men and his brother was because his brother did not want them in his house any more and that the offender wanted to safely shepherd Forbes home. I reject that evidence. I am satisfied that the offender led the group from his brother's house on foot to launch a retaliatory attack and that White followed in a car with the same objective. I am also satisfied that the opportunity presented itself near the intersection of Links Drive and Mount Hall Road when the red Commodore was pelted with hand thrown missiles of various kinds and struck by a metal bar wielded by John Shedden and then chased from the area by White. White collided with the red Commodore at a roundabout after a car chase over 4 kilometres. Neither the deceased nor the occupants of the red Commodore got out of the car during that attack. There is no evidence that the offender participated in the attack or that he drew the loaded shotgun from his jacket sleeve. This is irrelevant to an assessment of the criminality attending his use of the gun to kill the deceased some hours later. 21My having rejected the evidence of Forbes that he left his mother's house unarmed has a direct bearing on the weight that I am prepared to give to other aspects of his evidence, in particular his evidence as to what happened later that evening, including at the time of the shooting. It also has a bearing on the question of who was armed with the large black handled machete found by a resident in Links Drive after the shooting and after both groups had dispersed. That machete was tendered in evidence at the trial. (I note that the machete was located on the same side of Links Drive where the knife Nable had been given by Forbes' mother was found.) 22I repeat, it was the offender's case at trial and on sentence that the deceased was wielding the machete when he emerged from the car immediately prior to being shot and the Crown case was that he was unarmed. The offender gave evidence that the deceased was armed, as did others in his group. AB described the deceased as having a brown handled machete which he identified as the one tendered in evidence. Purkiss said the deceased got out of the car holding a "sword" which he thought was the machete tendered in evidence. White gave evidence in chief that the deceased was not armed with the machete but that John Shedden had it in his possession. Under cross-examination White said that it was dark and he could not see very well and that it was "possible" that the deceased was holding the machete and that it "could have been" even bigger than the machete tendered in evidence. Russell said that the deceased was holding a knife about two feet in length. Forbes said the deceased had a sword, by which he meant a big knife, 30-40 cm in length with a curved edge. JB said the deceased was holding a knife. Russell, Forbes and JB were not asked by the Crown to identify the machete when giving their evidence. 23Ms Davenport sought to persuade me that the deceased, and those with him in the red Commodore, returned to the area where they had assaulted Forbes and Wilson earlier with the hope of a further confrontation, and to inflict further violence if necessary, and that for this reason they were not unwitting victims of the attack launched by the offender's group at the intersection of Links Drive and Mount Hall Road. She also submitted that the deceased and his group returned a further time after he and his brother armed themselves for a retaliatory attack. The evidence does not support that submission. 24Daniel Wright (an occupant of the red Commodore) gave what I accept as an honest account that after the fist fight on Mount Hall Road his friends were, as he described it, "pumped up", but that after driving into Newcastle and spending an hour or so at Nobby's Beach they had calmed down and, so far as he was concerned, their intentions in returning to Raymond Terrace were simply to drive around in the deceased's car and keep drinking. The return journey to Newcastle and its timing relative to other events was supported by telephone records. Wright said that things only "flared up again" when the red Commodore was attacked and damaged by the offender's group as they were travelling from Newcastle along Mount Hall Road towards a friend's house in Clyde Circuit (coincidentally where Forbes lived) and then the car was further damaged after the collision in the ensuing car chase. 25After the collision the deceased and his group drove on to where the deceased was living in Heatherbrae. Each of the young men in the deceased's group gave evidence that the deceased was furious at the damage done to the rear bumper bar and the gash in the driver's side door of his car and, as Dean Rivers described it, "the other boys were also fairly worked up". At Heatherbrae the battery from the red Commodore was transferred into a blue Commodore (also owned by the deceased) and the group drove back into Raymond Terrace. While they each said that this was principally to visit with their friend at Clyde Circuit, they also decided, at that time, that if they came across the boys that had attacked the car they would, as Rivers described it, "square up". The question that arises is whether they armed themselves for that purpose. 26At trial each of the witnesses associated with the deceased was cross-examined consistent with the offender's case that the deceased armed himself at Heatherbrae with the machete before returning to Raymond Terrace in the blue Commodore and that he did so with the intention of finding the boys who had damaged his car and to inflict violence on them in retaliation and that he emerged from the car with the machete with that intention. Each of these witnesses, albeit in different ways and with different emphasis, denied that that was the case. 27The combined effect of their evidence, in the context of all of the evidence at trial, satisfies me that none of them were armed with weapons upon leaving Heatherbrae with the intention of returning to Raymond Terrace to exact revenge for the attack on the red Commodore. In the result, I am satisfied beyond reasonable doubt that the only weapon available to the occupants of the blue Commodore was what was described as a "hunting knife" located by police in the side pocket of the rear passenger seat of the car when it was seized later that evening. Thomas Maynard gave evidence that the knife was fortuitously in the side pocket from a previous hunting trip and that he grabbed it on impulse as he followed his brother out of the blue Commodore in Links Drive, concerned that his brother was exposing himself to an angry mob unprotected. He impressed me as a witness of truth. I accept his evidence. 28As the deceased and his friends were preparing to return to Raymond Terrace from Heatherbrae in the blue Commodore, in the circumstances as I have found them to be, White returned to the area of Links Drive where he met with the offender and the others in his group who had by that time congregated in a reserve at the end of a nearby street. Contrary to the offender's evidence, I am satisfied that at this time plans were made for a further attack should the deceased and his friends return to the area and, with that objective, the offender maintained control over the younger men threatening them with violence if they defected. I am also satisfied that contrary to the offender's evidence (and others in his group who gave evidence) that while they were at the reserve they were each armed with weapons and other implements including, in particular, the machete which I am satisfied Forbes took with him from his home earlier that evening. The offender admitted that he was armed with the loaded shotgun at this time. 29As the offender and his group walked from the reserve and down Links Drive towards his brother's house, they used trees on both sides of the street as cover in what was described by one of the witnesses as "army style". Those who were not armed with weapons armed themselves with pieces of broken brick from the front yard of one of the houses in Links Drive. 30I am also satisfied that Nable was directed by the offender to remain at the corner of Links Drive and Mount Hall Road to keep a lookout so as to alert him by a pre-arranged signal if the red Commodore returned. When the blue Commodore came to the corner it was either ushered into Links Drive by Nable for the purpose of a surprise attack (I note one of the witnesses in the blue Commodore claimed Nable whistled) or it ventured into the street in order to see whether Nable was in fact associated with the group that had damaged the red Commodore and to "square up" with a fist fight were that to prove to be the case. 31As the blue Commodore travelled down Links Drive it was ambushed by the offender's group hurling pieces of brick and other makeshift missiles 150 metres from the intersection with Mount Hall Road. Whilst some of the members of the offender's group admitted that the car was ambushed, none of them admitted using bricks. Others either denied that the attack occurred at all while others feigned no memory, or an imprecise memory, of what they did and what others in their group did. 32Forbes gave evidence in chief that nobody from his group had any weapons of any kind during the attack. I am satisfied he was being deliberately untruthful when giving this evidence. He was cross-examined by the Crown with leave, and agreed with what was recorded in the statement of facts tendered in his sentence proceeding as follows: The vehicle in which the deceased was travelling was stopped in Links Drive by our group including Chad and John Shedden. The group surrounded and attacked the car in which the deceased was travelling. The attack included throwing missiles and projectiles at the car and beating the car with some of the weapons the group possessed. 33No one got out of the blue Commodore when it was attacked as it travelled down Links Drive. It is not entirely clear where the offender was when it was ambushed but it would appear that he was on that side of the road closest to the passenger side of the blue Commodore as it passed. The deceased was seated in the front passenger seat. There is no evidence that the offender drew the shotgun from his jacket sleeve at that time. Assuming that to be the case, it would appear that he was content to see the blue Commodore ambushed and pelted with missiles, perhaps in the belief that it would retreat as the red Commodore had done earlier. 34However, under the deceased's direction (and despite the urgings of his friends and the unstated wishes of Dillon Bell not to drive back into trouble) after travelling a short distance beyond the site of the attack Bell executed a U-turn and travelled back towards the group. I have no doubt this was because the deceased intended to confront them and "square up" in a fist fight. That decision and his conduct in getting out of the car was impulsive and reckless, doubtless fuelled by a dangerous mix of anger and alcohol. The concentration of alcohol in his blood at autopsy was 0.154g per 100ml of blood. Blood tests also revealed 0.034 mg per litre of blood of Delta-9-tetrahydrocannabinol and 0.057mg per litre of Delta-9-THC, consistent with very recent use of cannabis. 35The blue Commodore either stopped in its forward passage back along Links Drive by people on the road or Bell stopped the car on his own volition or at the deceased's direction. At that point the driver's window and the passenger window on the driver's side was smashed with a hammer or a similar implement wielded by someone in the offender's group. Whilst this damage was being inflicted (and while both Bell and Wright were shielding themselves against that attack from inside the car), the deceased got out of the passenger seat and went to the rear of the car closely followed by his brother who had armed himself with the hunting knife before getting out of the rear passenger seat. 36I reject the offender's evidence that the deceased was armed when he got out of the car and those in his group who gave similar evidence as being either untrue or unreliable. Their evidence generally as to the events of the night was unsatisfactory. Each of them, in different ways, understated the level of planning and violence in which they actively participated. Some displayed a discernible and wholly misplaced partisan attitude towards the offender or others in their group to whom they believed they owed alliance. I make particular reference in that regard to Daniel Forbes who, despite having been given the benefit of a very considerable reduction in sentence on his undertaking to give truthful evidence, I am satisfied he sought repeatedly to deflect the truth or give a diluted version of it. 37I have taken into account that Bradley White's evidence was supportive of the Crown case, in particular his evidence that the group who left John Shedden's house were armed during the course of the attacks on both the cars, that the offender was openly belligerent and aggressive throughout the night and, importantly, that the offender drew the shotgun and fired directly at the deceased. I also accept that to some extent the youngest person in the offender's group, AB, was endeavouring to give truthful evidence. I am, however, unable to give his evidence or White's evidence that the deceased was armed with a machete sufficient weight as to overwhelm the collective weight of the evidence of the occupants of the blue Commodore to the contrary on this question, or to leave me with a reasonable doubt about it. I accept that the occupants of the blue Commodore were allied with the deceased and that their evidence may also have been coloured for that reason. That said, their individual accounts of the events of the night were largely consistent, given to police relatively contemporaneously in lengthy recorded interviews and in some respects given against their interests. Ultimately, I am satisfied these witnesses gave their evidence with a degree of frankness, expressing themselves with persuasive force, liberally laced with the vernacular, to satisfy me that as to the critical issue in dispute for sentencing purposes they were telling the truth. 38The deceased was shot in the chest and fell back against the open rear passenger door left open by his brother and without having progressed any distance along the side of the car. Having regard to the ballistics evidence and the location of a spent cartridge, I am satisfied that the offender fired the shotgun at the deceased over a distance of 6 to 8 metres, that is from the opposite side of the road, and that he did so with the intention of killing him. A total of 346 pellets of an anticipated load of 350 pellets were removed from the deceased's upper chest at autopsy. Prior to the shot discharging the deceased's brother heard the offender say "Maynard I'm going to shoot you. Fuck off, I am going to shoot you" and that the gun was pointed straight at him. White heard him say "Do you want to get shot? I'll shoot you. I'll shoot you, dog". Russell heard him say as the gun went off "You fucking cop that". 39After he was shot the deceased was dragged back into the car by his friends and the blue Commodore left the scene. He died en route to the hospital. The offender's group dispersed in the interim. The offender was driven from the scene by White. 40Shortly after midnight a crime scene was declared and a detailed examination of Links Drive undertaken. Assorted debris consisting of broken bricks and smashed glass was located on Links Road at the site of the second ambush. A knife, a hammer, the machete and portions of a knife handle were also located. I am satisfied that these were the discarded weapons used by those in the offender's group. I am also satisfied that the offender directed his brother to dispose of the shotgun which was later recovered by police with his brother's assistance. 41The offender was arrested and charged with murder on 13 July 2010.

Objective criminality 42After taking into account the events of the night leading up to the shooting, as I have found them, with the offender, armed with a shortened loaded shotgun, leading a group of young men and boys around suburban streets in Raymond Terrace determined to exact violent revenge on the deceased and his group, and succeeding in achieving that objective on two occasions before discharging that weapon with the stated intention of killing an unarmed person, I regard the objective seriousness of this offending as extremely high. The offending is further aggravated by the offender's complete disregard for public safety by planning for and executing armed assaults on a car and its occupants in a suburban location (s 21A(2)(i) of the Crimes (Sentencing Procedure) Act). I have already taken into account the use of the gun (s 21A(2)(c)) and that the murder was committed in the presence of AB and JB as persons under 18 years of age (s 21A(2)(ea)) in my assessment of the objective criminality that accompanied the offending in this case. 43At the time of the murder the offender was subject to three Court Attendance Notices for a number of traffic offences which were dealt with by the Local Court in April 2010 when he was convicted in his absence. On his arrest on 13 July 2010 he was sentenced for those offences to an effective non-parole period of 12 months to date from 13 July 2010. The warrant for his arrest issuing on his failure to appear to answer the traffic charges was relied upon by the Crown as a further feature of aggravation under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. I do not regard it as a feature of aggravation carrying any weight in this sentencing exercise. It does however bear upon the date from which his sentence should commence. 44The offender gave evidence on sentence that he is "sorry" for having killed the deceased. I accept that this is some evidence of remorse and that he has some insight into the gravity of his offending and the loss suffered by the deceased's family by reason of his conduct. For that reason, I am satisfied that his prospects of rehabilitation are not entirely bleak. I am not persuaded that the deceased's unprovoked assault on Wilson and Forbes earlier in the night operates in mitigation of sentence in the sense comprehended by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.

Subjective circumstances 45The offender was aged 34 years at the time of sentence. His criminal record is lengthy, including terms of imprisonment for threatened violence in a domestic context. There are no firearm offences and no offences of actual violence aside from a common assault in 2000. Most entries relate to street offences, driving offences and minor offences of dishonesty. 46His family history, education and work history was supplied to Dr Jacmon for the purposes of preparing his report. It can be summarised as follows. He is the second oldest of five brothers who grew up in a supportive family environment in Newcastle. He attended a local primary and high school. He was placed in a special class in high school with a primary focus on a non-academic curriculum. He left school without attaining his School Certificate although he did achieve a certificate in welding in Year 10. He has worked in a chicken processing plant, in a sales position at a supermarket and, in the months prior to the offence, as a traffic controller during road maintenance works. 47He has two children of a previous relationship and a current de facto relationship. He reported seeing his own children whenever he can and that his de facto partner and her children visit him regularly in custody. 48Dr Jacmon reports that the offender has diagnosed cognitive deficits with his verbal IQ recorded at the mild retardation level and his overall IQ assessed at the borderline level between low average and mild retardation. His reading and comprehension skills were assessed at the level of year three with testing indicating the likelihood of brain damage. This was not confirmed by any neurological report. I have no information as to whether the brain damage was organic or trauma-based. Dr Jacmon also recorded a finding of adult attention deficit hyperactivity disorder which, at the time of the murder, was in his view further impaired by substance abuse from the combined use of ice, marijuana and alcohol since his mid-adolescence. The offender reported using three quarters of a gram of ice and 700 mls of bourbon on the day of the murder. I note that he gave evidence before the jury that he had consumed that quantity of alcohol which he regarded as not unusual. Unsurprisingly, he made no reference at trial to his drug use. 49In Dr Jacmon's view, the range of cognitive impairments, confirmed on clinical assessment, indicated a markedly diminished capacity in the offender for judgment or rational decision making and what Dr Jacmon described as "a failure to apply common sense to thought processes" resulting in a compromised appreciation of the consequences of particular conduct. 50The offender has been in custody since his arrest on 13 July 2010. Ms Davenport submitted that although he has had visits whilst in custody, his custodial situation is such that he has been isolated for lengthy periods for the past two years and this will likely continue for the foreseeable future. The offender gave evidence at the sentence hearing that he has been housed in a non-association cell to afford him protection against threats that have been made against him whilst in prison and because of an attack from another prisoner where he sustained a head injury. 51He also gave evidence that he is only released from his cell to make phone calls and has no daily contact with anybody save for Corrective Services officers who deliver his meals. Ms Davenport submitted that his isolation in the prison system is exacerbated by his functional illiteracy. The offender gave evidence that although he has a desire to undertake courses whilst in custody to improve his literacy and numeracy, he is currently unable to access any educational material or facilities that might assist him. 52I accept that without some extended supervision by the parole service upon his release his personal circumstances are unlikely to improve. In light of the length of sentence to be imposed, however, I am not persuaded that any extension of the parole period would enhance the offender's prospects of rehabilitation. Ms Davenport did not submit otherwise. I would, of course, encourage the offender to undertake all courses offered to him whilst in custody which might improve his skill base. I also recommend that when the conditions of his custody permit it, that he be given access to appropriate facilities in the prison system where his illiteracy and innumeracy, and his cognitive deficits, can be addressed by appropriate support.

Parity 53Daniel Forbes was sentenced by Harrison J for his role in the manslaughter of the deceased to imprisonment for 3 years with a non-parole period of 1 year and 6 months (R v Forbes [2011] NSWSC 1547). The offender's brother was sentenced by me to imprisonment for 9 years with a non-parole period of 6 years and 9 months (R v Shedden [2012] NSWSC 759). 54In accordance with settled authority, Ms Davenport did not submit that the principles of parity apply in the sentence to be imposed on this offender.

Sentence 55The statutory maximum of life imprisonment for murder under s 19A(1) of the Crimes Act reflects the fact that the taking of human life is regarded as among the most serious of crimes. The community has the legitimate expectation that any sentence imposed against that statutory maximum will reflect the allied sentencing principles of denunciation and punishment. 56I have already noted that a standard non-parole period of 20 years is provided for in Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act. The approach to sentence in these circumstances does not require me to assess whether this offending is in, or above, the mid range of objective seriousness. I do note, however, as I am obliged to do, that the standard non-parole period of 20 years represents the period an offender should spend in custody for an offence in the middle of the range of objective seriousness without regard to aggravating or mitigating factors that might apply in an individual case. Furthermore, I am not required to identify any reasons for not imposing the standard non-parole period, but rather to assess the objective seriousness of the offence of murder by reference to all relevant factors and to review the offender's subjective circumstances by the same analysis in order to reach a judgment as to the appropriate sentence acknowledging that a standard non-parole period of 20 years has been fixed by the Parliament for murder, in the mid range, after trial. 57In this case I am satisfied that the murder of the deceased reflects a very high degree of criminality. The offender's conduct in planning for and leading an armed attack of the kind that was launched (and on two separate occasions on the one night in a suburban street) which culminated in the death of a young man must attract a sentence capable of deterring others from behaviour of the kind in which these two groups of men participated as well as punishing the offender for murdering the deceased and denouncing his conduct publicly. The gravity of his conduct is untempered by any matters in mitigation. I was not invited by counsel to find that his cognitive deficits or his behavioural disorder bear any causative connection to the murder, which otherwise might have allowed me to afford considerations of general deterrence less weight. That said, I have taken his subjective circumstances and his compromised intellectual ability, coupled with the sequelae of substance abuse over many years, into account in the sentencing exercise. I am not unmindful of the need for the sentence that I impose to carry with it the expectation that he will take steps to address his rehabilitation during the term of his imprisonment and that the prison system will afford him that opportunity. 58Chad Ross Shedden, for the murder of Joshua Maynard I sentence you to imprisonment for 27 years commencing on 13 July 2011 comprising a non-parole period of 20 years expiring on 12 July 2031 and a balance of term of 7 years expiring on 12 July 2038. For the offence of possessing a shortened firearm contrary to s 62(1)(b) of the Firearms Act 1996 which I have been asked to deal with by the Crown's tender of a certificate pursuant to s 166 of the Criminal Procedure Act 1986, I impose a fixed term of 12 months to commence on 13 July 2011. Accordingly, the earliest date you are eligible for release to parole is 12 July 2031.

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